Updated February 2017

ISSUE:

The buyer’s offer to purchase the home stated in Section 8o of the contract that the offer had to be accepted by 5pm on Friday. At 4:30pm on Friday, the listing broker called and left a voicemail for the buyer’s broker stating that the seller was accepting the buyer’s offer. The acceptance of the buyer’s offer was not faxed, however, until 5:15pm on Friday. Is there a valid contract? If not, can the buyer nevertheless waive the late acceptance and open escrow with an accepted contract?

ANSWER:

If the written acceptance was not delivered to the buyer’s broker by 5:00pm on Friday, the buyer’s offer was not timely accepted. Although the buyer is no longer required to perform under the contract, the buyer can elect either expressly or impliedly to waive the late acceptance and perform under the contract. In other words, there will be a contract if the buyer expressly notifies the seller in writing that the buyer will waive timely acceptance; there will also be a contract if the buyer impliedly waives the late acceptance by opening escrow, by conducting inspections and by otherwise performing under the contract.